[2024] UGHC 588

### **THE REPUBLIC OF UGANDA**

#### **IN THE HIGH COURT OF UGANDA HOLDEN AT MASINDI**

#### **MISCELLANEOUS APPLICATION NO. 0001 OF 2023**

#### **[Arising out of Civil Suit No.0008 of 2018]**

**RGD TRUSTEES OF JAMIYATUL MUSLEMIN ANJUMAN :::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT**

### **VERSUS**

- **1. MASINDI TOWN MUSLIM COMMUNITY LIMITED** - **2. YAHAYA ABDUNURU SOZI** - **3. SAIDI JUMAIN** - 10 **4. HAJJI MUSA MARIJANI** - **5. HAJJI KAGGWA MIKIDAD** - **6. HAJJI NURU BYARUHANGA** - **7. YUSUF NYAMAYARWO** - **8. JUMA GAWA :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENTS**

#### **BEFORE: Hon. Justice Isah Serunkuma**

### **RULING**

The applicant brought this application under Section 98 and Section 82 of the Civil Procedure Act, Order 46 rule 1, and Order 52 rules1&3 of the Civil Procedure Rules 20 seeking Orders to review and/or set aside orders dismissing Civil Suit No. 0008 of 2018 issued by this honorable court for want of prosecution, reinstatement of Civil Suit No. 0008 of 2018 to be heard on its merit, and costs for this application to be provided for.

### *Background*

The applicant filed Civil Suit No. 0008 of 2018 for declarations that.

1) Masindi Town Mosque, constructed on LRV 3058 Folio 3 Plots 14-18 Tongue Street, Masindi District, registered in the name of the first defendant (Masindi Town Muslim Community Limited), belongs to the plaintiff. Masindi Moslem

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Town Community is generally incorporated and registered under the name of Jamiyatul Muslemin Anjuman.

- 2. A declaration that the second to tenth defendants, individually or collectively, cannot own Masindi Town Mosque under the cover of the first defendant. - 3. A declaration that Jamilayatul Muslemin Anjuman is the duly incorporated legal entity formed by the Muslims of Masindi with the mandate to manage, administer, and control all Muslim affairs in Masindi and protect all Muslim property in Masindi. - 4) An order for the cancellation of the certificate of title in the names of the first 10 defendant and the same be registered in the names of Jamilayatul Muslemin Anjuman. - 5) Account for monies collected by the defendants as rent from the forty-four lockup shops on the Suitland and monies collected as donations from the Muslim community in Masindi Town. - 6) Mesne profits, compensatory damages, and costs of the suit. - 7) The suit was dismissed on 16 July 2020 for lack of prosecution; however, after the consent of both parties, this honorable court reinstated it. - 8) On June 8, 2022, it was dismissed again for want of prosecution; thus, this application to reinstate it. - 20 9) The applicant has sufficient grounds to warrant a review of the order made on June 8, 2022, dismissing Civil Suit No.0008 of 2018 as such. - a) That the non-attendance of the applicant and /or its advocates, M/s Nyanzi Kiboneka and Mbabazi advocates, when the suit came up for hearing was a result of non-service of the court process to the applicant and/or his advocates. - b) The applicant's and his advocates' non-attendance at a court hearing was not a willful default.

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- c) That the trial judge's dismissal of Civil Suit No.0008 of 2018 without giving the applicant a fair hearing is not only against the principles of natural justice and equity but also a violation of the applicant's constitutional right to be heard. - d) That this application has been brought without undue delay upon discovery of the dismissal. - e) That the applicant has always been vigilant and shown keen interest in proving its case and is still desirous of prosecuting the same. - f) That no prejudice will be occasioned to the respondents if the application is granted and Civil Suit No.0008 of 2018 is heard and determined on its merits 10 as the respondents are currently in possession of the suit land. - g) That it is only fair and appropriate in the interest of justice that the order dismissing High Court Civil Suit No.0008 of 2018 be reviewed and set aside, and the suit reinstated so that all matters in controversy between the parties in the main suit are determined on merit.

This application is supported by the affidavit of Hajji Mahmod Kazimbiraine, one of the registered trustees of the applicant, but simply reiterates the grounds in the application.

The application was opposed by an affidavit sworn by Yahaya Abdunuru, the second respondent, and one of the subscribers of the first respondent, as follows.

- 1) That the application is frivolous, vexatious, bad in law, untenable at law, and an 20 abuse of court process, because of which the court shall be moved to dismiss it. - 2) The applicant failed to fix the matter for hearing, thus dismissing Civil Suit No.0008 of 2018. - 3) That the applicant took two full years without appearing in court with a view of proceeding with the case an act that portrayed that the applicant had lost interest in the matter. - 4) When the matter was finally fixed for a court hearing, the applicant still did not appear, and the matter was dismissed for want of prosecution.

- 5) The applicant's habit of filing one suit after another and unending applications infringe the rights of the respondents, portraying them as fraudsters and unnecessarily making them subjects of civil proceedings, which wastes their time and subjects them to unnecessary expenses in terms of legal fees. - 6) The respondents have suffered great inconvenience mentally, financially, and physically ever since the applicant started instituting frivolous suits and applications against them. - 7) That this application be dismissed with costs.

# 10 *Representation*

The Applicant was represented by Counsel Hamza Kyamanywa of M/S Nyanzi Kiboneka, Mbabazi Advocates, and the Respondent was represented by Counsel Simon Kasangaki of M/S Kasangaki and Co. Advocates. During the hearing, the court directed that the parties file written submissions, which both parties filed.

Each of the parties raised their issues in their submissions, and as such, for proper determination of this application, I will raise two issues.

# *1. Whether dismissal of Civil Suit No. 0008 of 2018 was justified.*

### *2. What remedies are available to the Applicant.*

Counsel for the applicant made a submission based on three principles.

# 20 *1) The applicant was not at fault.*

Counsel submitted that the applicant's failure to attend court on the 8th day of June 2022, at 9:00 in the forenoon, was not the fault of the applicant, who did not know the date, and no hearing notice was served by the court summoning the applicant for the hearing. That it is trite law that failure to serve summons upon which an order is arrived at, the said order is a nullity. Counsel referred this court to the case of *Siraji Vs. Stanbic Bank, wherein Hon. Justice S. B. K Kavuma* relies on the Kenyan decision of **Continental Bank of Kenya Ltd Vs. Mukunva [2003]1E. A 209,** where it was held that *'the failure to*

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*serve summons upon which the order is made was not a mere irregularity, but a defect which made the order a nullity, and therefore, the order must be set aside.*

Counsel cited *Rule 4 of the Civil Procedure (Amendment) Rules*, which provides for automatic abatement of a suit if no step is taken for six months after mandatory scheduling has been done.

Counsel submitted that after the reinstatement of Civil Suit No.0008 of 2018 vide Miscellaneous Application No. 0075 of 2020, the parties filed their joint scheduling memorandum on the 13th day of January 2023, awaiting the mandatory scheduling, which had not been done. Thus, the dismissal of Civil Suit No. 0008 of 2018 contrary to 10 the Civil Procedure (Amendment) Rules was an error apparent on the face of the record whose cure would be the grant of this application to ensure that proper administration of justice through the matter being heard and determined is on merit.

On the second principle that the applicant genuinely attempted to pursue the case, counsel submitted that the applicants made efforts to attend court as and when required by this honorable court and that the averments in paragraphs 8 and 10 of the affidavit in reply are falsehoods in that both counsel and the parties were not present in court and neither of them had been notified. Counsel cited the case of *National Insurance Corporation vs. Mugenyi and Company Advocates [1987] HCB]28,* where the court held that the main consideration for reinstatement of a suit should be whether 20 the applicant honestly intended to attend a hearing and did his best to do so. In his submission, counsel stated that Civil Suit No. 0008 of 2018 was indeed dismissed for want of prosecution on 16th July 2020; however, at that time, the applicant's failure to prosecute the case had been as a result of the national lockdown where most of the institutions in the country had been closed and transport means had been stopped due to outbreak of covid 19 pandemic in the country.

In conclusion, counsel submitted that the applicant did his best, including urgent and essential steps, to fix the matter. Thus, he prays to this court to find that the applicant

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has made a case to warrant reinstatement of Civil Suit No.0008 of 2018 to be heard on its merit.

In opposition to this application, counsel for the respondent premised his submissions on three grounds.

- I. The dismissal of Civil Suit No.0008 0f 2018 for want of prosecution under Order 17 Rule 6 was valid and justified. - II. The issue for consideration is whether the applicant has furnished sufficient cause for failing to take any steps for two years. - III. A negligent plaintiff/applicant should not abuse the court's powers to reinstate 10 suits.

On the ground, one counsel submitted that the suit was dismissed under Order 17, Rule 6 of the Civil Procedure Rules, which orders suits to be dismissed if no action is taken for two years. That indeed, the court was right in dismissing the suit since it had been dormant for nearly two years.

The purpose of the above the law is to enable courts to satisfy their constitutional mandate to ensure that justice is not delayed in accordance with Article 126 (2) (b) and that it is the duty of the plaintiff to set down the suit for hearing. Order 17 Rule 6 does not envisage the need for a formal application or motion being given because it is for a whole two years. If the applicants were interested in prosecuting the case, they would have 20 taken steps to ensure that the suit processes for the time it remains in limbo.

Counsel cited Duhaime's Civil Litigation and Evidence Law diction to define '*for want of prosecution.'* He also cited the case *of Allen vs Sir Alfred Mc Alpine,* which sets out a three-part test for the court to set aside its orders once a suit is dismissed for want of prosecution.

On ground two counsel submitted that the applicant cannot justify their failure to prosecute its case and that the affidavit supporting this application shows that there is

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no justified reason for the applicant's failure to prosecute their case. Regarding the applicants' claims that they were not notified to attend court on the 8th day of June 2020, when the matter was dismissed, counsel submitted that the applicant failed its duty to follow up and fix the suit for hearing. It is self-defeating for the applicant to start blaming the court for fixing and dismissing the suit after the applicant had failed to fix the same for a hearing for two years. As such, it does not find ground for this court to reinstate the matter. The applicant is only bringing up lame excuses for his failure to take any steps to prosecute the case. In conclusion to this ground, counsel stated that the applicant has not furnished any sufficient reason for this court to reinstate the matter.

10 Lastly, on ground three, counsel submitted that it is trite law that where a specific provision of the law provides a remedy, a party should not seek to invoke general remedies. *Order 17 rule 6* provides for a right to file a fresh suit subject to the law of limitation and that the applicant should use such a remedy. Counsel cited the case *Dr. James Akampumuza Vs. Eddie Tukamushaba Kuroboza, Makerere University Business School, and 2 Ors* regarding the importance of *Order 17 Rule 6 of the Civil Procedure Rules.*

Counsel concluded his submissions by praying that this court be pleased to maintain the order of dismissing Civil Suit No.0008 of 2018 with costs.

In rejoinder, counsel for the applicant first reiterated its earlier submissions in support 20 of the application and then added that the crux of this application is that no notice was issued by the court summoning the applicant or the respondent for a hearing on 8th June 2022. The applicant genuinely attempted to pursue Civil Suit No. 0008 of 2018 and, therefore, has a basis for seeking reinstatement of the case. It is in the interest of justice that Civil Suit No.0008 of 2018 be reinstated so that the applicant adduces its evidence to substantiate its claims using the available evidence.

### *Consideration of the Application*

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I have analyzed the application, affidavit in support, affidavit in reply, and submissions of both counsels. Before I consider the merits of this application, I will first determine the law under which it was brought.

According to the application, it was brought under *Article 26(2)(e) of the Constitution of the Republic of Uganda, Sections 82 and 89 of the Civil Procedure Act Cap 17, Order 46 r 1 and Order 52 r 1 & 3 of the Civil Procedure Rules SI 71-1.* In his written submissions, counsel for the applicant quoted that Civil Suit No. 0008 of 2018 was dismissed under *Order 9 Rule 17 CPR*, while counsel for the respondent contended that it was dismissed under *Order 17 Rule 8 of the Civil Procedure rules*. In his submissions in reply, counsel 10 for the respondent submitted relying on *Order 9 rule 23(1) CPR.*

To properly determine the right law to be used in determining this application, it is prudent that I first establish the law under which Civil Suit No.0008 of 2018, which is sought to be reinstated, was dismissed.

According to the court record, on the 8th day of June 2022, in the absence of both parties, the ruling was as thus.

*"Ever since this suit was reinstated on the 22nd of September 2021, the applicant/plaintiff has never appeared with the view to proceed with the suit. It is evident by the passage of time that the plaintiff has lost interest in the suit. In the premises, the suit is dismissed for want of prosecution."*

20 For clarity, let me reproduce both rules of procedure under which counsel is submitting;

### *Order 9 Rule 17 CPR*

*"17. when neither party appears when the suit is called for hearing*

*when neither party appears when the suit is called on for hearing, the court may make an order that the suit be dismissed.*

*Order 17 rule 5 provides a dismissal for want of prosecution.*


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*If the plaintiff does not, within eight weeks from the delivery of any defense, or where a counterclaim is pleaded, then within ten weeks from the delivery of the counterclaim, set down the suit for hearing, then the defendant may either set down the suit for hearing or apply to the court to dismiss the suit for want of prosecution.*

*6. Suit dismissed if no step is taken for two years*

*(1) In any case not otherwise provided for, in which no application is made or step taken for two years by either party with a view of proceeding with the suit, the court may order the suit to be dismissed*

10 *2) in such a case, the plaintiff may, subject to the law of limitation, bring a fresh suit.*

According to the court record, both parties were absent, and as such, *Order 9 rules 8 and 23(1)* were quoted in error.

From my understanding of the above, it shows that the plaintiff had not taken any step to ensure that the suit was heard by this honorable court ever since it was reinstated, and on this date, none of the parties was present. This brings me to the conclusion that the suit was dismissed under *Order 9 Rule 17 CPR.* Although counsel for the respondent in his submissions argued that Civil Suit No .0008 of 2018 was dismissed because it had abated, the law, as stated above, is very clear that for the court to dismiss a suit in case no step has been taken, a period of two years must have elapsed. From 22nd 20 September 2020 to 8th June 2022, two years had not yet lapsed, so it cannot be interpreted that civil

Suit No. 0008 of 2018 had abated.

The right law to bring this application is *Order 46 rule 1 CPR*, which provides for this Honorable Court to review its orders if it is found that a plaintiff has a duty to ensure that once they have filed a suit, the same is prosecuted without delay. In so doing they have to do all it takes to enable that the same is fixed for hearing to avoid prejudice to the

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defendants. However, suppose the court, using its inherent powers, fixes the suit for hearing in that case, the litigants should prudently be well notified and allowed to explain delay or failure to fix the suit for hearing within a reasonable time before the suit is dismissed.

In the circumstances of this case, although the respondents and the then-defendant claim the presence of their counsel in extracting the order, it is evident from the court proceedings that both parties and their counsel were absent on June 8, 2022, when Civil Suit No.0008 0f 2018 was dismissed.

From the above, I find that the applicant had sufficient reason for not attending court on 10 the 8th day of June 2022, when their case was dismissed for want of prosecution. This court has a duty to see that each party before it gets justice. I, therefore, make the following orders.

- 1. The order dismissing Civil Suit No. 0008 of 2018 has been set aside, and the case should be expeditiously fixed for hearing within 30 days of this ruling. - 2. Civil Suit No. 0008 of 2018 has been reinstated to be heard on its merits. - 3. Costs of this application shall be in the cause.

# **I so Order.**

**Dated and delivered this 30 th Day of April 2024.**

**……………………… Isah Serunkuma**

**JUDGE**

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